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Kunce v. Berryhill

United States District Court, S.D. Florida

August 24, 2017

NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security Administration, Defendant.



         THIS MATTER is before the Court on the Plaintiff's Motion for Summary Judgment (DE# 17, 02/05/17) and the Defendant's Motion for Summary Judgment (DE# 21, 04/17/17). The plaintiff seeks reversal of Commissioner's decision to deny the plaintiff's eligibility for Social Security Disability Income Benefits under the provisions of the Social Security Act, Sections 216 (I) and 233 of Title II. In the alternative, the plaintiff asks for a remand for further administrative proceedings. The Complaint was filed pursuant to the Social Security Act, 42 U.S.C. §405(g) (hereinafter “Act”), and is properly before the Court for judicial review of a final decision of the Social Security Administration (hereinafter “SSA”). The parties consented to Magistrate Judge jurisdiction, (DE# 13, 12/21/16), and this matter was referred to the undersigned for final disposition pursuant to an Order by Judge Moreno. (DE# 16, 12/29/2016). Having carefully considered the fillings and applicable law, the undersigned enters the following Order.


         On April 7, 2015, William Christian Kunce (hereinafter “the plaintiff”) protectively filed a Title II application for a period of disability and disability insurance benefits, alleging he became disabled on November 6, 2012. (Tr. 23, 164, 171-78).[2] The application was denied initially and upon reconsideration. (Tr. 23). At the administrative hearing on January 26, 2016, the plaintiff appeared, testified and was represented by counsel. (Tr. 43-75). A vocational expert (hereinafter “VE”), also appeared and testified at the hearing. (Id.). On February 16, 2016, the Administrative Law Judge (hereinafter “ALJ”) found that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became final when the Appeals Council denied the plaintiff's request for review on May 10, 2016. (Tr. 5-11).


         I. The Plaintiff's Background

         The plaintiff was born on November 8, 1983, and is thirty-three years old. (Tr. 34). The plaintiff completed one year of college education and does not have any vocational or technical training. (Tr. 47). The plaintiff alleges his disability began on November 6, 2012. (Tr. 44). The plaintiff served in the Marine Corps from July 23, 2002, to February 14, 2003, and from January 5, 2004, to March 10, 2006. (Tr. 33). The plaintiff alleges disability due to a combination of mental health impairments, including, bipolar disorder, post-traumatic stress disorder (PTSD), depression, and anxiety. (Tr. 44-5; DE# 21, 04/17/2017). The plaintiff also alleges he is disabled due to lower back pain and a right shoulder impairment. (DE# 21, 04/17/2017).

         The plaintiff's Work History and Disability Reports include prior employment as a flight technician, a roofer helper, and a retail assistant manager. (Tr. 49, 50). The plaintiff worked for three different retail outlets and each position did not last longer than one month. (Tr. 48). The plaintiff also worked as a roofer helper for “[one] month or so” and alleges he stopped working as a roofer helper because he could not “physically keep up.” (Tr. 50). Specifically, the plaintiff alleges his shoulder subluxation prevented him from keeping up with the physical aspects of the job. (Tr. 50-51).

         The plaintiff testified to having anger outbursts with his children and that he did not think he could control his anger. (Tr. 52-53, 56). The plaintiff also testified that he helps home school his seven-year-old son for half an hour to one hour at a time. (Tr. 52-53). With respect to going outside the home, the plaintiff testified that he is prone to have “more panic attacks when [he's] outside of the house.” (Tr. 56-57). The plaintiff further testified that when he does go outside of the home, it is only with his wife and only to the store. (Tr. 56). The plaintiff testified that he frequently traveled from Miami, Florida to Augusta, Georgia due to continuing problems with his living situation. (Tr. 254). The plaintiff testified that he smokes marijuana at least two times per month, that his wife, who is his care giver, buys the marijuana with the care giver salary she receives from the Department of Veterans Affairs (hereinafter “VA”). (Tr. 67).

         The plaintiff did not engage in substantial gainful activity (hereinafter “SGA”) during the period from his alleged onset date of November 6, 2012, through his date last insured of December 31, 2013. (Tr. 47). The plaintiff last met the insured status requirements of the Social Security Act on December 31, 2013. (DE # 21, 04/17/2017 at 2).

         II. The Plaintiff's Treating Physicians and Relevant Medical Evidence

         The plaintiff was examined by several doctors during and after the alleged onset date of disability, including: Dr. Lovorka P. Stojanov, M.D., an internist at the Charlie Norwood VA Medical Center in Augusta Georgia (hereinafter “Augusta VAMC”) (Tr. 253-65); Dr. Danielle Suykerbuyk, D.O., a psychiatrist at the Augusta VAMC (Tr. 530); Dr. Maria P. Campos, M.D., an internist at the Miami VA Medical Center (hereinafter “Miami VAMC”) (Tr. 464); Dr. Javier I. Cartaya, M.D., a psychiatrist at the Homestead, Florida VA Medical Center (hereinafter “Homestead VAMC”) (Tr. 314-21); Dr. Ernesto M. Grenier, M.D., a psychiatrist at the Miami VAMC (Tr. 366); Dr. Zhihong Guo, M.D., a psychiatrist at the Miami VAMC (Tr. 298-9, 347); Dr. Stephanie Friedman, M.D., a psychiatrist at the Miami VAMC (Tr. 913-26); and Dr. Earl Taitt, M.D., an examining psychiatrist at Valencia Psychiatry in Orlando, Florida. (Tr. 927-30).

         A. Dr. Lovorka P. Stojanov, M.D.

         Beginning on November 16, 2012, the plaintiff received treatment from Dr. Lovorka P. Stojanov M.D. at the Augusta VAMC. (Tr. 261). In Dr. Stojanov's progress note dated November 16, 2012, the plaintiff reported headaches while taking Mobic[3] and requested a change in medication. (Id.). In addition, the plaintiff reported issues with irritability and insomnia. (Id.). During the November 16, 2012, visit, Dr. Stojanov performed a PHQ-9 Depression Screen[4] on the plaintiff. (Tr. 263). The plaintiff scored a sixteen on the PHQ-9 screening, which, according to Dr. Stojanov, is “suggestive of moderately severe depression.” (Id.). Dr. Stojanov prescribed the plaintiff Indocin[5] for his lower back pain and ordered a mental health evaluation. (Tr. 262).

         B. Dr. Danielle Suykerbuyk, D.O.

         On January 9, 2013, the plaintiff was evaluated by Dr. Danielle Suykerbuyk, D.O., for management of his PTSD at the Augusta VAMC. (Tr. 530-32). In Dr. Suykerbuyk's progress note dated January 9, 2013, the plaintiff reported insomnia, nightmares, intrusive thoughts, extreme emotional numbing, impaired concentration, low energy, and alternating psychomotor agitation and retardation. (Id.). The plaintiff described episodes of no sleep, increased energy, racing thoughts, pressured speech, euphoric mood, and increased libido. (Id.). Dr. Suykerbuyk diagnosed the plaintiff with Bipolar I disorder most recent episode manic without psychotic features, PTSD, cannabis abuse in full sustained remission, nicotine dependence, and a Global Assessment of Functioning (GAF)[6] of 50. (Tr. 532). Dr. Suykerbuyk prescribed the plaintiff Lithium.[7] (Tr. 533). Dr. Suykerbuyk also reported that the plaintiff was alert and oriented, had good eye contact and grooming, had fair judgment, and that his memory was intact. (Tr. 532).

         On January 16, 2013, Dr. Suykerbuyk spoke to the plaintiff via telephone. (Tr. 528). The plaintiff reported that since he started taking lithium, he had a metallic taste in his mouth and some headaches. (Id.). Despite these side effects, the plaintiff elected to continue taking Lithium and agreed to have his blood level tested on January 23, 2013. (Id.). Dr. Suykerbuyk prescribed the plaintiff Tylenol for his headaches. (Id.).The plaintiff called Dr. Suykerbuyk the following day, on January 17, 2013, and stated he had taken Tylenol several times for the headaches and that it was not helping. (Id.). The plaintiff also stated he would like to switch to another medication. (Id.). Dr. Suykerbuyk prescribed the plaintiff Depakote ER.[8] (Id.).

         On April 26, 2013, Dr. Suykerbuyk spoke to the plaintiff via telephone. (Tr. 520). According to Dr. Suykerbuyk's notes, the plaintiff was very upset about “everyone dying”. (Id.). The plaintiff conceded to having trouble remembering to take his medications. (Id.). Dr. Suykerbuyk discussed with the plaintiff the importance of medication compliance for his emotional stability and encouraged him to take responsibility for his medication rather than relying on his wife. (Id.). Dr. Suykerbuyk noted the plaintiff had a GAF score of 45 and increased his dosage of Depakote. (Tr. 520-21).

         C. Dr. Maria P. Campos, M.D.

         On August 25, 2014, the plaintiff had his initial visit at the Miami VAMC with Maria P. Campos, M.D. (Tr. 464). The plaintiff reported attempting suicide multiple times in the past, but did not presently have any suicidal intent. (Id.). Notwithstanding this contention, the plaintiff reported he felt his condition had worsened. (Id.). The plaintiff also reported a previous right shoulder surgery and constant chronic pain. (Id.). The plaintiff further reported having difficulty sleeping and severe epigastric pain after each meal. (Tr. 467).

         Dr. Campos placed a Patient Record Flag, Category I on the plaintiff's chart, despite the plaintiff's reported lack of suicidal intent. (Tr. 462). The plaintiff was placed on the facility's High Risk for Suicide list the following day on August 26, 2014. (Tr. 462-63). Dr. Campos noted she placed the plaintiff on the facility's High Risk for Suicide list because the plaintiff was depressed, experiencing multiple stressors, and had a strong history of four suicide attempts. (Tr. 463). A rating decision by the Department of Veterans Affairs (“VA”) dated September 5, 2014, found the plaintiff to have 100% service connected disability due to his chronic adjustment disorder with mixed anxiety and depressed mood, effective December 23, 2011. (Tr. 931, 933).

         D. Dr. Javier I. Cartaya, M.D.

         On October 9, 2014, the plaintiff was evaluated by Dr. Javier I. Cartaya, M.D., at the Homestead VAMC. (Tr. 314). Dr. Cartaya's assessment of the plaintiff described him as having numerous mood and anxiety symptoms, limited coping skills, and numerous negative distortions in his thinking. (Tr. 320). Dr. Cartaya also noted that the plaintiff had been off his medications for six months. Dr. Cartaya also noted that the plaintiff made the decision to see him on his own accord. (Id.). Dr. Cartaya diagnosed the plaintiff with bipolar disorder I, unspecified anxiety disorder, tobacco use disorder, and chronic pain. (Id.). Dr. Cartaya also recommended a mood stabilizer but the plaintiff refused. (Id.).

         E. Dr. Ernesto M. Grenier, M.D.

         On October 27, 2014, the plaintiff was evaluated by Dr. Ernesto M. Grenier, M.D. at the Miami VAMC. (Tr. 366). According to Dr. Grenier's progress note, the reason for the plaintiff's visit was to review his record for continuity of care and compliance with his follow up visit because the plaintiff had been identified as a high risk patient. (Id.). Dr. Grenier diagnosed the plaintiff with: (1) bipolar I disorder, (2) unspecified anxiety disorder (and ruled out generalized anxiety disorder), (3) history of PTSD, and (4) unspecified personality disorder. (Tr. 367). Dr. Grenier's impression of the plaintiff as a risk for suicide ideations, intent, or plans was low. (Id.). Moreover, Dr. Grenier described the plaintiff as having the capacity to make decisions regarding his treatment. (Tr. 370). In support, Dr. Grenier performed a PHQ-2 Depression Screening that resulted in a score of zero, which is a negative screen for depression. (Id.).

         F. Dr. Zhihong Guo, M.D.

         On November 14, 2014, the plaintiff was evaluated by Dr. Zhihong Guo, M.D. at the Miami VAMC. (Tr. 291). The plaintiff reported feeling down, angry with himself, having racing thoughts, and prolonged latency to falling into sleep. (Id.). Dr. Guo reported that the plaintiff was having some paranoid and persecutory delusions. (Tr. 292). A mental status exam indicated that the plaintiff had fair attention and concentration, good hygiene and grooming, was alert, had fair insight and judgment, and had a depressed and anxious mood. (Tr. 296-97). Dr. Guo also reported the plaintiff as having job skills, or capable of being taught because he is cognitively, emotionally and physically willing to work. (Tr. 297). The plaintiff was reported to be alert and oriented to spheres and free of any altered thought process. (Id.).

         On January 13, 2015, the plaintiff returned to Dr. Guo. (Tr. 347). The plaintiff reported episodes of frequent mood swing cycles occurring two to three times monthly, changes of sleeping cycles, and less tolerance to small life related stress. (Tr. 348). Accordingly, Dr. Guo's assessment revealed that the plaintiff's response to treatments for bipolar I disorder, nightmares, and PTSD were not improving as expected. (Tr. 346). The plaintiff agreed to start Zyprexa.[9] (Tr. 348). On February 13, 2015, the plaintiff returned to Dr. Guo for a follow up assessment. (Tr. 340). The plaintiff described difficultly falling into sleep, mood swings, feeling anxious, and episodes of mildly elevated mood. (Tr. 341). The plaintiff also complained of back and joint pain. (Tr. 342). The plaintiff's mental status exam indicated, however, that he was calm and cooperative with interview, maintained good eye contact, had fair attention and concentration, and that his level of alertness was intact. (Tr. 343). The plaintiff was prescribed Prazosin[10] and his dose of Zyprexa was increased. (Tr. 346).

         At a visit on April 28, 2015, the plaintiff reported compliance with his medication routine absent any side effects. (Tr. 331).The plaintiff also indicated feelings of anxiety and frustration, low levels of concentration and being easily distracted. (Id.). The plaintiff further reported depressive episodes including: depressed mood, lack of motivation and loss of interest in maintaining hygiene and grooming. (Id.). Dr. Guo diagnosed the plaintiff with bipolar I disorder, with rapid cycling, PTSD, unspecified anxiety disorder, cannabis use disorder, a cluster A trait[11], nicotine dependence, GERD[12], and ruled out schizotypal personality. (Id.). Dr. Guo indicated the plaintiff's bipolar I disorder, mania episodes, and response to PTSD treatment were improving. (Tr. 337). Dr. Guo increased the plaintiff's dosage of Zyprexa and his dosage of Prazosin. (Id.).

         On June 5, 2015, after completing a Mental Impairment Questionnaire (“MIQ”), Dr. Guo diagnosed the plaintiff with bipolar I disorder, PTSD, unspecified anxiety disorder, cannabis use disorder, and nicotine dependence. (Tr. 490, 486). The clinical signs included: manic syndrome, grandiose thoughts, difficultly thinking or concentrating, easy distractibility, intrusive recollections of a traumatic experience, hyperactivity, psychomotor agitation, pressured speech, loosening of associations, and decreased sleep. (Tr. 487). Dr. Guo also found that the plaintiff may not be able to handle stress in the workplace, concluding he would likely decompensate if placed in a stressful situation. (Tr. 488).

         Dr. Guo identified the plaintiff as having “moderate-to-marked limitations” where his symptoms constantly interfere with his ability to perform mental activities in a competitive environment on a sustained and ongoing basis for one-third to two-thirds of an eight-hour workday. (Tr. 489). According to Dr. Guo, these symptoms affected the plaintiff's ability to: understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; perform at a consistent pace without rest periods of unreasonable length or frequency; get along with coworkers or peers without distracting them; and be aware of hazards and take appropriate precautions. (Id.). Dr. Guo estimated that the plaintiff would likely be absent from work more than three times per month due to his impairments or treatment. (Tr. 490). On the Mental Impairment Questionnaire, Dr. Guo identified that the plaintiff's first treatment was on September 11, 2009. (Tr. 486). In addition, Dr. Guo opined that the plaintiff's symptoms and related limitations applied far back, but he did not specify how far back they dated. (Id.).

         G. Stephanie Friedman, M.D.

         On July 28, 2015, the plaintiff was evaluated by Dr. Stephanie Friedman, M.D. at the Miami VAMC. (Tr. 736). The plaintiff reported he was no longer taking Prazosin because it made him feel “weak” but continued to take Zyprexa nightly. (Id.). The plaintiff also reported continued fluctuations in energy levels, with two to three days of no sleep, two to three times a month. (Tr. 736- 37). Dr. Friedman diagnosed the plaintiff with bipolar disorder I, PTSD, and cannabis and nicotine use disorder. (Tr. 742-43). Dr. Friedman prescribed the plaintiff Lamictal[13] and Zyprexa. (Tr. 742).

         At a follow up visit on August 21, 2015, the plaintiff indicated compliance with his medication routine. (Tr. 720). The plaintiff reported feeling “more stable” than he had in the past few years, but that he continued to experience cycling of energy levels with two to three days of increased energy and a decreased need for sleep. (Tr.720-21). Dr. Friedman concluded that the periods of increased energy are associated with poor concentration. (Id.). Dr. Friedman described the plaintiff's response to treatment for bipolar I disorder as inadequately controlled. (Tr. 727). The plaintiff agreed to begin individual psychotherapy, but refused a PTSD consultation. (Id.).

         On October 13, 2015, the plaintiff returned to Dr. Friedman. (Tr. 703-04). The plaintiff reported compliance with his medication absent side effects. (Tr. 704). The plaintiff stated that he had not smoked marijuana in two months. (Id.). The plaintiff also reported improvements in his overall mood, decreased impulsivity, and decreased goal-directed activities. (Id.). Despite his continued mood fluctuations, the plaintiff noted his “highs” and “lows” lasted for shorter periods of time and that he either slept well or not at all, whereas before he would consistently have interrupted sleep. (Id.). Dr. Friedman noted that the plaintiff's response to treatment for bipolar disorder I continued to be inadequately controlled. (Tr. 710). Dr. Friedman increased the plaintiff's dose of Lamictal and prescribed Trazodone.[14] (Id.).

         In an addendum dated December 11, 2015, Dr. Friedman stated that the plaintiff was totally disabled without consideration of any past or present drug and/or alcohol use. (Tr. 913). Dr. Friedman stated drug and/or alcohol use was not material because the plaintiff was not currently using drugs and/or alcohol and was still disabled. (Id.).

         H. Dr. Earl Taitt, M.D.

         On April 29, 2014, at the request of the plaintiff's counsel, Dr. Earl Taitt, M.D. of Valencia Psychiatry in Orlando, Florida, evaluated the plaintiff via telephone because the plaintiff did not have access to transportation. (Tr. 927). Dr. Taitt also reviewed the plaintiff's veteran claim file, which consisted of 745 pages of records including the plaintiff's service medical record, outpatient medical records from the VAMC, and records in support of his various claims for symptoms in 2005 while on active duty in the Marine Corps. (Id.). According to Dr. Taitt's progress note, a mental status examination revealed that the plaintiff's mood was anxious, dysphoric, and irritable. (Tr. 929). Dr. Taitt also stated that the plaintiff's thought process was confused, slowed, and inefficient and described the plaintiff as forgetful of facts and events with limited insight. (Id.). Dr. Taitt found, however, that the plaintiff's judgment was intact at the time of the evaluation. (Id.).

         Dr. Taitt diagnosed the plaintiff with PTSD, an adjustment disorder with mixed anxiety and depressed mood, chronic lower back pain, chronic esophageal reflux disease, bilateral conductive hearing loss, and physchosocial stressors. (Id.). The plaintiff's GAF assessment resulted in a score of 50. (Id.). Dr. Taitt concluded that the plaintiff suffered from service connected mental health impairment beginning in the year 2005 through the present date. (Tr. 929). In Dr. Taitt's opinion, the plaintiff met all of the DSM IV criteria for a diagnosis of both PTSD and an adjustment disorder with anxiety and depressed mood. (Id.). Dr. Taitt also found that the plaintiff's psychological symptoms were severe enough for him to be unsuitable for full or part-time employment in any occupation. (Id.).

         III. Department of Disability Services Psychological Advisors

         On June 15, 2015, Lee Reback Psy. D., P.A. (hereinafter “Reback”), a Department of Disability Services (DDS) medical advisor, and Melissa Rubin (hereinafter “Rubin”), a Disability Examiner, determined that the plaintiff was not disabled. (Tr. 82-83). To make this determination, Reback and Rubin evaluated the plaintiff's medical records from the Augusta VAMC and the Miami VAMC. (Tr. 77-78). Reback found there was insufficient evidence to determine the plaintiff's restriction of activities, his difficulties in maintaining social functioning, his difficulties in concentration, persistence or pace, and any repeated episodes of decompensation. (Tr. 80). Reback further concluded there was insufficient evidence to establish that the plaintiff had an organic mental, schizophrenic, affective disorder, or an anxiety-related disorder. (Id.). Reback also found that the plaintiff had medically determinable impairments (MDI) from dysfunction to major joints, spine disorders, anxiety disorders, and affective disorders. (Tr. 79).

         With respect to Residual Functional Capacity (“RFC”)[15], Reback concluded that the plaintiff was found to have exertional limitations, which included: (1) that the plaintiff could occasionally[16] lift or carry 50 pounds; (2) that the plaintiff could frequently[17] lift or carry 25 pounds; (3) that the plaintiff could stand or walk for a total of about six hours in an eight-hour workday; and (4) that the plaintiff could sit for a total of about six hours in an eight-hour day. (Tr. 81). The plaintiff also had an unlimited exertional limitation to push or pull when lifting or carrying. (Tr. 81). Moreover, the plaintiff had manipulative limitations when reaching in any direction left or right, in front, and/or laterally. (Id.). Rubin concluded that the plaintiff “should have been able to engage in SGA as outlined in [the] RFC at the time of his DLI”.[18] (Tr. 82).

         IV. Vocational Expert Testimony

         On January 26, 2016, the vocational expert (“VE”), testified at the plaintiff's hearing before the ALJ. (Tr. 41). At the hearing the VE testified the plaintiff's jobs as a flight technician, roofer helper, and assistant manager were performed in the national economy. (Tr. 69). The VE further testified that the plaintiff developed transferable skills from his position as an assistant manger, specifically, customer service skills. (Id.). However, the VE found that the ...

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